Monday, August 5, 2013

Article on Maryland's decision to retain contributory negligence

A couple of weeks ago I criticized the recent decision of the Court of Appeals of Maryland in which it decided to retain the antiquated, inadequate, unfair and, for those reasons, almost universally rejected doctrine of contributory negligence. I asserted that the majority opinion is weak and unconvincing and that it takes the wrong position on the policy in question. You can read my post (and get a link to the opinion) here.

Professor Edward Robertson has now published a short but very good article in which he expands on many of the points I made. I highly recommend the article which is available here. In it, Prof. Robertson shows that the court abdicated its judicial duty, and, as I asserted in my original post, the basis for the opinion is weak and unconvincing. As he explains better than I did, there is simply no legislative or public policy declared by the legislature to which the court has any reason to defer. He also explains that the opinion creates a perverse incentive for special interests lobbyists and that, again as I suggested, the court ignores the reality of the legislative process which is operates on the basis of an "asymmetrical balance of lobbying interests."

The article makes a number of other great points. You should read it. But let me mention just one more.

The court admits that courts are justified in changing the common law when the conditions that resulted in the policy in question have changed. So, how is it that conditions have not changed in the state of Maryland to the point where a change in the common law is justified? Forty six other states have decided the change has been justified for a long time. What makes Maryland different?